From spring 2004 to fall 2004, leading new media artists, curators and
theorists discussed the exciting and diverse field of Art &
Technology to the students, faculty and staff of Columbia University.
All lectures were taped and made available online. The online
presentation of the lectures served as a measure of Instructor Mark
Tribe's students' understanding of each presenter's talk as well as its
place in the larger discourse of art and technology.

I'm sure a lot of people are wondering about my case with the AP
over the Obama HOPE poster. I can't talk about every aspect of the
case, but there are a few things I want to discuss and points I'd like
to make.

Most importantly, I am fighting the AP to protect the rights of all
artists, especially those with a desire to make art with social
commentary. This is about artistic freedom and basic rights of free
expression, which need to be available to all, whether they have money
and lawyers or not. I created the Obama image as a grassroots tool
solely to help Obama get elected president. The image worked due to
many complex variables. If I could do it all over again, I would not
change anything about the process, because that could change the
outcome. I am glad to endure legal headaches if that is the trade-off
for Obama being president.

No disrespect was intended to photographer Mannie Garcia, but I did
not think (and do not think) I needed permission to make an art piece
using a reference photo. From the beginning, I openly acknowledged
that my illustration of Obama was based on a reference photograph. But
the photograph is just a starting point. The illustration transforms
it aesthetically in its stylization and idealization, and the poster
has an altogether different purpose than the photograph does. The AP
photo I used as a reference, which I found out much later was taken by
Mannie Garcia, (which was actually this one,
not the one being circulated in the press) was a news photo that showed
George Clooney and Barack Obama attending a 2006 panel on the genocide
in Darfur. My Obama poster variations of "HOPE" and "PROGRESS" were
obviously not intended to report the news. I created them to generate
support for Obama; the point was to capture and synthesize the
qualities that made him a leader. The point of the poster is to
convince and inspire. It's a political statement. My Obama poster does
not compete with the intent of, or the market for the reference photo.
In fact, the argument has been made that the reference photo would have
faded into obscurity if it were not for my poster which became so
culturally pervasive. The Garcia photo is now more famous and valuable
than it ever would have been prior to the creation of my poster. With
this factor in mind, it is not surprising, that a gallery in NYC is now
selling the Garcia photo for $1,200 each. As I understand it, Garcia
himself did not even realize the poster was created referencing his
photo until it was pointed out to him a full year after the poster came
into existence. Mannie Garcia has stated in the press that he is an
Obama supporter pleased with the poster result.

I did not create the Obama poster for financial gain. The poster was
created to promote Obama for president, and the revenue from poster
sales was re-invested in more posters, flyers, stickers, etc.., and
donated to charity, including the Obama campaign. A free download of
the Obama image was available on my website, which should provide
further evidence of the desire to disseminate the image, not to benefit
financially.

Lastly, I m very saddened to see many people try to demean my Obama
poster as being "stolen" or that because I used a photo I "cheated".
As far as the idea of the image being "stolen", I would love to have
the clout to command portrait sittings from world leaders, but for me
and most artists out there, that is not an option. For lots of artists,
even licensing an image is out of the question financially. Should
artistic commentary featuring world leaders be stifled because of
copyright of the reference images even when the final artistic product
has new intent and meaning? Reference is critical to communication, and
in my opinion, reference as a part of social commentary should not be
stifled.

A writer asked me why I "didn't just draw Obama from my
imagination". My response was that I needed to make my image look like
Obama, who is not an imaginary character. I know few people who could
capture a convincing likeness of close friends or even their own family
members from their imagination or memory. I use my own family members
as models, taking my own photos of them to illustrate from - VIVI LA REVOLUCION and COMMANDA. Were Obama a member of my family I would have employed this technique.

Another suggestion someone made was "why not splice two or three
photos together and illustrate from that?" Well, though a direct match
would have been harder to find, with an image as popular as the HOPE
poster, internet sleuths would probably have found the references and
maybe I'd be facing two or three lawsuits. This leads to the next
question: is illustrating from a photograph "cheating"? I studied art,
illustration specifically, at one of the most prestigious art schools,
The Rhode Island School of Design. At RISD I was taught to draw from
life, to draw from photo references, and to appropriate and
re-contextualize imagery. All of these techniques had historical
precedents which I learned about. Here are some great examples of famous painters working from photo references, and not always their own photos.

I have respect for, and have frequently collaborated with,
photographers, but I do not think permission, or a collaboration is
warranted in every case where an artist works from a photo reference. I
collaborate with photographers because I WANT to, not because I believe
I HAVE to. Usually, when I work directly with a photographer as a
collaboration, I do so because I am building upon, rather than
transforming their original intent. Of course, as with everything, the
definition of transformation and fair use is somewhat subjective. I'm
an artist, not a lawyer, so I'd prefer to see more latitude for
creativity even though I do respect intellectual property.

This case has raised many issues, including the use of references in
art. Some of my earlier works have been attacked by some as
"plagiarism". I think reference is an important part of communication
and it has been common practice in the art world. When I flipped
through the Christie's auction house catalog from November 2008 I found
many pieces that are based on reference or appropriation. Most are
selling for over $100,000. Some are more clever than others, but these
are all works that are at auction being taken very seriously. Take a look.

If the AP wins their case, every Obama art (or any other politician)
that was based on a photo reference that was not licensed would be
rendered illegal. Here are just a few that were an important part of
the political discourse during this election cycle. I also think art
that is critical of leaders that neither the subject or the
photographer approve of need to be a legal form of expression. I think this Bush image is a perfect example.

Lawrence Lessig and I have been writing about the link between publisher contributions to members of the House Judiciary Committee and their support for H.R. 801 -- a bill that would end the newly implemented NIH public access policy
that makes all works published as part of NIH-funded research freely
available online. On Friday, House Judiciary Chairman John Conyers
(D-MI) -- lead sponsor of the bill -- responded in a letter on Huffington Post.

The first several paragraphs of Conyers' letter contain an outline
of his record as a progressive politician. But no record, no matter how
distinguished, is an excuse for introducing an atrocious piece of
legislation that sacrifices the public interest to those of a select
group of publishing companies.

Conyers would have us believe that it is just a coincidence that his
bill would erase a government policy vehemently opposed by publishers
who have contributed to his campaigns. But his response to our letter
-- like the bill itself -- is taken straight from the publishers'
playbook.

Conyers trots out the publishers' two favorite lines of attack
against the policy: 1) that the NIH policy is taking a right (in this
case a copyright) away from publishers, and 2) that making
taxpayer-funded research available to taxpayers will bankrupt
publishers and thereby destroy science.

Both arguments are specious and reflect fundamental ignorance about
how science and scientific publishing work. The accusation that the
policy is bad for science because it will drive publishers out of
existence is the more serious one, so I will deal with it first. Here
is what Conyers wrote:

... on the narrow merits of the issue, Professor Lessig and
proponents of "open access" make a credible argument that requiring
open publishing of government-funded research information furthers
scientific inquiry. They speak out for important values and I respect
their position.

While this approach appears to further and enhance access to
scientific works, opponents argue that, in reality, it reverses a
long-standing and highly successful copyright policy for
federally-funded work and sets a precedent that will have significant
negative consequences for scientific research.

These opponents argue that scientific journals expend their own,
non-federal resources to manage the peer review process, where experts
review academic publications. This process is critical because it
provides the quality check against incorrect, reckless, and fraudulent
science and furthers the overall quality and vigor of modern scientific
debate. Journal publishers organize and pay for peer review with the
proceeds they receive from the sale of subscriptions to their journals,
thereby adding considerable value to the original manuscripts of
research scientists.

The policy Professor Lessig supports, they argue, would limit
publishers' ability to charge for subscriptions since the same articles
will soon be publicly available for free. If journals begin closing
their doors or curtailing peer review, or foist peer review costs on
academic authors (who are already pay from their limited budgets
printing costs in some cases), the ultimate harm will be to open
inquiry and scientific progress may be severe. And the journals most
likely to be affected may be non-profit, scientific society based
journals. Once again, a policy change slipped through the
appropriations process in the dark of night may enhance open access to
information, but it may have unintended consequences that are severe.

Far from being the reckless act Conyers portrays, the NIH policy is
actually fairly conservative. It requires that papers that arise from
NIH funded research be made freely available, through a website run by
the National Library of Medicine, within 12 months of publication --
not immediately. This delay between publication and free public access
was put in precisely because it will allow publishers to recoup, and
profit from, their investment in publishing by charging for access to
the freshest material.

Science moves far too fast for active researchers to afford a year's
delay before reading papers in their field. Thus universities and other
research institutions have to maintain subscriptions to journals even
if their year-old content is freely available. Many journals, realizing
that their revenue comes primarily from new material, already make
their complete contents freely available online after a year or less.
And these journals have not reported a wave of canceled subscriptions
-- or any appreciable loss of revenue. So both empirical data and
publisher actions refute Conyers' central argument against the NIH
public access policy.

Conyers' argument is also clouded by several misconceptions about
scientific publishing. He correctly identifies peer review as the most
important role of scientific journals. But he is incorrect in his
assertion that publishers make a tremendous investment of "their own,
non-federal resources" in the process of peer review. While publishers
supervise peer review, the process itself is carried out voluntarily by
members of the research community. Scientists receive no remuneration
whatsoever when they review a paper -- they do it instead because they
recognize that peer review is central to the scientific process.

Since the salaries of most American scientists are paid, directly or
indirectly, by the US government, the peer review process is actually a
massive federal subsidy to publishers, whose very existence is based on
the tens of billions of annual taxpayer dollars invested in scientific
research. That even after they have had a year to profit from this
taxpayer largesse some publishers are still unwilling to grant the
public access to copies of papers they paid to produce and review is
unconscionable.

And while Representative Conyers' publishing friends may have
convinced him that there are severe unintended consequences that will
arise from the NIH public access policy, the scientific community --
who has been debating this issue for over a decade -- strongly
disagrees. [read on...]

Mr. Conyers says
I "cross the line." He says I label his motivations for introducing
this bill as "corrupt," that I accuse him of "shilling," and that I
"dismiss" his bill as nothing more than a "money for influence scheme."
On the basis of this "one piece of legislation," he says I have waved
away "forty years of fighting against special interests." He insists
that he has "earned a bit more of the benefit of the doubt" and "that
there is far more to the 'open access' story than [my] muckracking tale
lets on." (Mike Eisen and my original posts are here and here. My blog post is here.)

First, as to substance: As others have shown without doubt, there is
absolutely no "more to the 'open access' story" than my and Mike
Eisen's criticism let on. (See the rebuttals especially here and here.)
This bill is nothing more than a "publishers' protection act." It is an
awful step backwards for science -- as 33 Nobel Prize winners, the
current and former head of the NIH, the American Library Association,
and the Alliance for Taxpayer Access have all said. And Mr. Conyers
knows this. Practically the identical bill was introduced in the last
Congress. Mr. Conyers' committee held hearings on that bill. The "open
access" community rallied to demonstrate that this publishers' bill was
bad for science. Even some of the cosponsors of the bill admitted the
bill was flawed. Yet after that full and fair hearing on this flawed
bill, like Jason in Friday the 13th, the bill returned -- unchanged, as
if nothing in the hundreds of reasons for why this bill was flawed mattered to the sponsors.

February 24, 2009

The early experimental video art scene in Chicago,
and its indispensability in developing an understanding of contemporary
New Media practices, is something that I learned from jonCates and that
jonCates learned from Phil Morton. Well, maybe it's not quite that
simple, but that is one possible set of connections that can be traced
from jonCates' COPY-IT-RIGHT project.

The Phil Morton Memorial Research Archive was initiated in 2007 by jonCates and is housed in The Film, Video & New Media Department at the School of the Art Institute of Chicago.
It exists to organize and freely distribute Phil Morton's new media
artwork, and also to perpetuate the COPY-IT-RIGHT ideal that Morton
advocated. As you can read on the blog for the COPY-IT-RIGHT project,
Morton sought to disseminate an anti-copyright attitude towards media
and its distribution, especially artwork that is based in digital
technologies. By referencing these ideals under the phrase
'COPY-IT-RIGHT', Morton sought to completely replace ingrained notions
of copyright law by re-framing the term's meaning as a call to action.
Make copies! It's the right thing to do! jonCates states that
COPY-IT-RIGHT ranges in meaning from copyright reform to pro-piracy.
"The COPY-IT-RIGHT ethic is presented by Morton as a value, even as a
moral imperative, to share and freely exchange media," he said.

jonCates began researching Morton's work shortly before he learned of Morton's death from Jane Veeder,
one of Morton's collaborators. Veeder put him in contact with Morton's
surviving partner, Barb Abramo, who later entrusted all of Morton's
archived material to him. jonCates said that this took place after a
couple years of correspondence and a developed understanding. The
creation of the archive is, "a personal and subjective process that
involves developing trust and friendships."

The personal degrees of separation enabling this archive, however,
should not betray it's larger goal, which, according to jonCates, is to
facilitate discourse. "This discursive work is intended to be
productive, engendering the development of theory/practices that are
informed by these archives and contributing to ongoing conversations,"
he states. The archive is a central point of investigation, but also
exists as a mediating voice within existing networks and issues, in
both form and content. The intermingling of the archive's personal and
institutional roots is exemplary of how individual archives might begin
to bridge recognized authority and the histories that are important to
individuals.

Because COPY-IT-RIGHT is a project that seeks to freely distribute
media art, as well as create a networked discourse around it, we are
invited to explore ideas such as influence and the generative origins
of our knowledge. This process eclipses antiquated visions of the
archive as a static source of 'knowledge' or 'history'.

COPY-IT-RIGHT's latest web entry is a transcript of a talk jonCates
gave at McGill University on anti-copyright approaches to media. In
that talk, he refers to "the artistic role of archives". jonCates
provided some further examples of "artistic archives", such as Emily Jacir's Material for a Film and Walid Raad'sThe Atlas Group,
which both seek to illuminate history and contemporary contexts through
materials that might not be automatically absorbed into our stateliest
cultural institutions. They represent an independent approach to
information collection, at the same time that they contain material
that is itself a challenge to dominant cultural and historical
knowledge. Likewise, COPY-IT-RIGHT is a lesser-voiced exploration of
Chicagoâ€™s art history, but also an open-ended call to discuss and
develop material on the future of media copyright attitudes.

The COPY-IT-RIGHT project, as mentioned, also exists to provide entry
into Morton's media art, for study or copy. The work he did with Dan
Sandin, creator of the Sandin Image Processor - an analog computer for
video image processing. Morton and Sandin's "Distribution Religion" is
a project that documents the process of duplicating the Sandin Image
Processor. Morton wanted to create a duplicate of the processor itself,
and in the process, created an outline of the method for others. The
documentation became part of the copying process, and also includes
remarks on the COPY-IT-RIGHT ethic.

February 20, 2009

Of course, no one will believe this, but this event was actually
scheduled before the AP threatened Shepard Fairey. It is the last of my
REMIX events, which was the last of my copyright/cyber books. Tickets here.